EXHIBIT 4.2
WASHINGTON MUTUAL, INC.,
MELLON INVESTOR SERVICES LLC, AS DEPOSITARY,
MELLON INVESTOR SERVICES LLC, AS REGISTRAR,
AND
THE HOLDERS FROM TIME TO TIME OF
THE RECEIPTS EVIDENCING THE DEPOSITARY SHARES
DESCRIBED HEREIN
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DEPOSIT AGREEMENT
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Dated as of September 18, 2006
DEPOSIT AGREEMENT
dated as of September 18, 2006
among
WASHINGTON MUTUAL, INC.,
a Washington corporation,
MELLON INVESTOR SERVICES LLC,
a New Jersey limited liability company , as Depositary,
MELLON INVESTOR SERVICES LLC,
a New Jersey limited liability company, as Registrar,
AND THE HOLDERS FROM TIME TO TIME OF
THE RECEIPTS EVIDENCING THE DEPOSITARY SHARES
DESCRIBED HEREIN
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Series K Perpetual
Non-cumulative Floating Rate Preferred Stock, liquidation preference
$1,000,000.00 per share, of the Company (the "Series K Preferred Stock") with
the Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts by the Depositary evidencing Depositary Shares in
respect of the Series K Preferred Stock so deposited; and
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the issuance hereunder of Receipts by the Depositary
evidencing newly issued depositary shares each representing a 1/40,000th
interest in one share of the Series K Preferred Stock so deposited (each a
"Depositary Share").
NOW, THEREFORE, in consideration of the promises contained herein and such
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement
(including the recitals hereto) and the Receipts:
"Company" shall mean Washington Mutual, Inc., a Washington corporation,
and its successors.
"Company's Articles of Incorporation" shall mean the amended and restated
articles of incorporation, as amended, of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean Mellon Investor Services LLC, a New Jersey limited
liability company, and any successor Depositary and Registrar hereunder.
"Depositary Shares" has the meaning specified in the recitals of this
Deposit Agreement.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05 of this Deposit Agreement.
"Depositary's Office" shall mean the principal office of the Depositary at
which at any particular time its depositary business shall be administered.
"NASD" shall have the meaning assigned to it in Section 2.06 of this
Deposit Agreement.
"NYSE" shall have the meaning assigned to it in Section 2.01 of this
Deposit Agreement.
"Receipt" shall mean one of the depositary receipts issued hereunder by
the Depositary, each representing any number of whole Depositary Shares.
"record holder" with respect to a Receipt shall mean the individual,
entity or person in whose name a Receipt is registered on the books of the
Depositary or any register of any Registrar maintained for such purpose at a
given time.
"Redemption Date" shall have the meaning assigned to it in Section 2.03 of
this Deposit Agreement.
"Registrar" shall mean (i) Mellon Investor Services LLC, as appointed by
the Company and the Depositary hereunder, or (ii) in the case that Mellon
Investor Services LLC is no longer the appointed Registrar hereunder, any bank
or trust company that shall be appointed by the Depositary (with the approval of
the Company) to register ownership and transfers of Receipts as herein provided
and which may include the Depositary.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series K Amendments" shall mean the articles of amendment to the
Company's Articles of Incorporation filed with the Secretary of State of the
State of Washington establishing the Series K Preferred Stock.
"Series K Preferred Stock" has the meaning specified in the recitals of
this Deposit Agreement.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF SERIES K PREFERRED STOCK; EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts. The registered owners of
Depositary Shares shall be entitled to receive Receipts in physical,
certificated form as herein provided.
Definitive Receipts shall be substantially in the form annexed hereto as
Exhibit A, with appropriate insertions, modifications and omissions, as
hereinafter provided. The Depositary,
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upon the written order of the Company delivered in compliance with Section 2.02,
shall execute and deliver Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, that such signature may be
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been (i) executed manually by a duly authorized officer of
the Depositary or (ii) executed by facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly authorized
officer of a Registrar for the Receipts (other than the Depositary, if any). The
Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided. The manual or facsimile signatures on the Receipts of
individuals who were at any time proper officers of the Depositary or the
Registrar, as the case may be, shall constitute adequate signatures hereunder,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the delivery of such Receipts or did not hold such offices on
the date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary and approved by the
Company or as required to comply with any applicable rules and regulations of
any securities exchange, including, without limitation, the New York Stock
Exchange ("NYSE"), upon which the Series K Preferred Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Subject to any limitations set forth in a Receipt or in this Deposit
Agreement, title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery of such Receipt with the same effect as if such Receipt
were a negotiable instrument; provided, however, that until transfer of a
Receipt shall be registered on the books of the Registrar, on behalf of the
Depositary, as provided in Section 2.04, the Depositary may, notwithstanding any
notice to the contrary, treat the record holder as the absolute owner thereof
for the purpose of determining the person entitled to distributions of dividends
or other distributions with respect to the Series K Preferred Stock or to any
notice provided for in this Deposit Agreement and for all other purposes.
The Depositary shall not lend any shares of Series K Preferred Stock
deposited hereunder.
SECTION 2.02 Deposit of Series K Preferred Stock; Execution and Delivery
of Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company may from time to time deposit shares of Series K
Preferred Stock with the Depositary under this Deposit Agreement by delivery to
the Depositary of a certificate or certificates representing the shares of
Series K Preferred Stock to be deposited. Such certificate or certificates
representing the shares of Series K Preferred Stock shall be (i) properly
endorsed or, if required by the Depositary, accompanied by a duly executed
instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with all such certifications as may be required by the
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Depositary in accordance with the provisions of this Deposit Agreement, and (ii)
accompanied by a written order of the Company directing the Depositary to
execute and deliver to the person or persons named in such order a Receipt or
Receipts evidencing in the aggregate, the number of Depositary Shares
representing interests in such deposited shares of Series K Preferred Stock.
All shares of Series K Preferred Stock deposited by the Company with the
Depositary shall be held by the Depositary at the Depositary's Office or at such
other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
representing shares of Series K Preferred Stock deposited with the Depositary by
the Company in accordance with the provisions of this Section 2.02, together
with the other documents required as above specified, and upon recordation of
the shares of Series K Preferred Stock so deposited on the books of the Company
in the name of the Depositary or its nominee, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall execute and deliver, to
the person or persons named in the written order delivered to the Depositary, a
Receipt or Receipts, evidencing in the aggregate the number of Depositary Shares
representing interests in the shares of Series K Preferred Stock so deposited.
Such Receipt or Receipts shall be registered by the Depositary or the Registrar
in such name or names as may be requested by the person or persons named in the
written order. The Depositary shall execute and deliver such Receipts at the
Depositary's Office or such other offices, if any, as such person may designate.
Delivery at other offices shall be at the risk and expense of the person
requesting such delivery.
Other than in the case of splits, combinations or other reclassifications
affecting the Series K Preferred Stock, or in the case of dividends or other
distributions in the form of shares of Series K Preferred Stock, if any, there
shall be deposited with the Depositary hereunder not more than 500 shares of
Series K Preferred Stock.
SECTION 2.03 Redemption of Series K Preferred Stock. Whenever the Company
shall elect to redeem shares of Series K Preferred Stock in accordance with the
provisions of the Series K Amendments, it shall (unless otherwise agreed in
writing with the Depositary) mail notice to the Depositary of such redemption,
by first class mail, postage prepaid, not less than 40 nor more than 60 days
prior to the date fixed for the redemption of the shares of such Series K
Preferred Stock in accordance with the provisions of the Series K Amendments. On
the date of such redemption, provided that the Company shall then have paid in
full to the Depositary the redemption price required pursuant to the Series K
Amendments, and sufficient to redeem the shares of Series K Preferred Stock to
be redeemed, the Depositary shall redeem the Depositary Shares representing
interests in such deposited shares of Series K Preferred Stock. The Depositary
shall mail notice of such redemption, and the simultaneous redemption of the
number of Depositary Shares representing interests in such deposited shares of
Series K Preferred Stock to be redeemed, by first-class mail, postage prepaid,
not less than 30 and not more than 60 days prior to the date fixed for
redemption of such shares of Series K Preferred Stock and Depositary Shares (the
"Redemption Date"), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed on the record date fixed pursuant to Section
4.04 hereof, at the addresses of such holders as they appear on the records of
the Depositary; provided, however, that neither failure to mail any such notice
to one or more such holders nor any defect in any notice or in the mailing
thereof to one or more such holders shall affect the validity of the proceedings
for redemption of any Depositary Shares as to other holders. Each such notice of
redemption shall be prepared by the Company and delivered to the Depositary for
subsequent
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delivery and shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares representing interests in such deposited shares of Series K Preferred
Stock to be redeemed and, if less than all the Depositary Shares held by any
such holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed and the method by which the applicable Depositary
Shares will be chosen for redemption; (iii) the redemption price (including any
authorized, declared, but unpaid dividends on the Redemption Date); (iv) the
place or places where Receipts evidencing the applicable Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the shares of such Series K Preferred Stock to be redeemed, which are
represented by the applicable Depositary Shares to be redeemed, will cease to
accrue at the close of business on the day prior to such Redemption Date. In
case less than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by lot or pro rata as may
be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Series K Preferred Stock to be redeemed by it as set forth in the Company's
notice provided for in the preceding paragraph), all dividends in respect of the
shares of Series K Preferred Stock so called for redemption shall cease to
accrue, the Depositary Shares being redeemed from such proceeds shall be deemed
no longer to be outstanding, all rights of the holders of Receipts evidencing
such Depositary Shares (except the right to receive the redemption price) shall,
to the extent of such Depositary Shares, cease and terminate and, upon surrender
in accordance with such notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed by the
Depositary at a redemption price per Depositary Share equal to one
forty-thousandth (l/40,000th) of the redemption price per share paid in respect
of the shares of the related Series K Preferred Stock plus authorized, declared,
but unpaid dividends on the Redemption Date and, if applicable, any money or
other property to which the holders of Receipts evidencing such Depositary
Shares are entitled hereunder.
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the payment of the redemption
price, a new Receipt evidencing the number of Depositary Shares as were
evidenced by such prior Receipt and not called for redemption; provided,
however, that such replacement Receipt shall be issued only in denominations of
whole Depositary Shares and cash will be payable in respect of fractional
interests.
SECTION 2.04 Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Registrar, on behalf of the
Depositary, shall register on its books transfers of Receipts from time to time
upon notice to the Registrar by the Depositary of the surrender of a Receipt for
transfer by the holder in person or by duly authorized attorney, which Receipt
in each case must be properly endorsed or accompanied by a properly executed
instrument of transfer. Upon surrender of a properly endorsed Receipt or Receipt
accompanied by an instrument of transfer, the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the transferee named in the
endorsement or instrument of transfer.
SECTION 2.05 Split-Ups and Combinations of Receipts; Surrender of Receipts
and Withdrawal of Stock.
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(a) Upon surrender of a Receipt or Receipts at the Depositary's
Office or at such other offices as it may designate for the purpose of
effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts to the
holder thereof or to such holder's order in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered. The Depositary shall give prompt notice
of such action and the certificate numbers to the Registrar for the
purpose of recording such split-up or consolidation.
(b) Unless the related Depositary Shares have previously been called
for redemption, any holder of a Receipt or Receipts representing any
number of whole shares of Series K Preferred Stock (or such holder's duly
authorized attorney) may withdraw the number of whole shares of Series K
Preferred Stock underlying such Depositary Shares and all money and other
property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. If such holder's Depositary
Shares are being held by the Depositary Trust Company or its nominee, such
holder shall request, withdrawal from the book-entry system of the number
of Depositary Shares specified in the preceding sentence. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder,
or to the person or persons designated by such holder as hereinafter
provided, the number of whole shares of Series K Preferred Stock and all
money and other property, if any, represented by the Receipt or Receipts
so surrendered for withdrawal, but holders of such whole shares of Series
K Preferred Stock will not thereafter be entitled to deposit such Series K
Preferred Stock hereunder or to receive Depositary Shares therefor. If the
Receipt or Receipts delivered by the holder to the Depositary in
connection with such withdrawal shall evidence in the aggregate a number
of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Series K Preferred Stock to be
so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Series K Preferred Stock and such money and
other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Sections 3.01 and 3.02) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Series
K Preferred Stock and the money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate.
(c) Shares of Series K Preferred Stock delivered pursuant to the
preceding paragraph may be endorsed with or have incorporated in the text
thereof such legend or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary
or required to comply with any applicable law or any regulation thereunder
or with the rules and regulations of any securities exchange upon which
the Series K Preferred Stock may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or
restrictions to which any particular shares of Series K Preferred Stock
are subject.
(d) If the Shares of Series K Preferred Stock and the money and
other property being withdrawn are to be delivered to a person or persons
other than the record holder of the Receipt or Receipts being surrendered
for withdrawal of Shares of Series K Preferred Stock, such holder shall
execute and deliver to the Depositary a written order so directing
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the Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Series K
Preferred Stock be properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank.
(e) Delivery of Shares of Series K Preferred Stock and the money and
other property, if any, represented by Receipts surrendered for withdrawal
shall be made by the Depositary at the Depositary's Office, except that,
at the request, risk and expense of the holder surrendering such Receipt
or Receipts and for the account of the holder thereof, such delivery may
be made at such other place as may be designated by such holder
SECTION 2.06 Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require (i) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, (ii) the production of evidence satisfactory
to it as to the identity and genuineness of any signature and/or (iii)
compliance with the rules and regulations of any governmental body, any stock
exchange or any applicable self regulatory body, including without limitation,
the NYSE or the National Association of Securities Dealers, Inc. (the "NASD") or
such other regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against the shares of Series K Preferred Stock
deposited with the Depositary may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender or exchange
of outstanding Receipts may be suspended (i) during any period when the register
of stockholders of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government, governmental body or commission, stock exchange or the NASD or
under any provision of this Deposit Agreement.
SECTION 2.07 Lost Receipts, Etc. If any mutilated Receipt is surrendered
to the Depositary, the Depositary shall execute and deliver in exchange therefor
a new Receipt of like type, form and tenor in exchange and substitution for such
mutilated Receipt. In case any Receipt shall be destroyed, lost or stolen, then,
in the absence of notice to the Depositary that such Receipt has been acquired
by a bona fide purchaser, the Depositary shall execute and deliver a Receipt to
the holder thereof of like type, form and tenor in exchange and substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary and the
Company of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of such holder's ownership thereof, (ii) the holder's
furnishing the Depositary with a bond of indemnity satisfactory to such
Depositary and the Company and (iii) payment of all applicable fees. Holders may
obtain such a bond of indemnity from a surety company of the holder's choice,
provided the surety company satisfies the Depositary's minimum requirements.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary.
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Except as prohibited by applicable law or regulation, the Depositary is
authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other Information. Any holder
of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, to obtain such guaranties of signature,
to execute such certificates and to make such customary representations and
warranties consistent with the terms of the Series K Preferred Stock as the
Depositary or the Company may deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.02 Payment of Taxes or Other Governmental Charges. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses as provided in Section 5.07, or provide evidence
satisfactory to the Depositary that such charges and expenses have been paid.
Registration of transfer of any Receipt and delivery of all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of the shares
of Series K Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold may be sold for the
account of the holder thereof (after attempting by reasonable means to notify
such holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03 Warranty as to Series K Preferred Stock. The Company hereby
represents and warrants to the Depositary that the Series K Preferred Stock,
when issued, will be validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of shares of Series K
Preferred Stock and the issuance of Receipts.
SECTION 3.04 Warranty as to this Agreement. The Depositary hereby
represents and warrants that this Agreement, when issued and upon the issuance
of the Receipts, will be the legal, valid and binding obligation of the
Depositary, enforceable against the Depositary in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting creditors' rights generally and
by general equity principles. Such representation and warranty shall survive the
deposit of shares of Series K Preferred Stock and the issuance of the Receipts.
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01 Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution with respect to the Series K Preferred
Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to
record holders of the applicable Receipts on the record date fixed pursuant to
Section 4.04 the pro rata portion, as nearly as practicable, of such dividend or
distribution applicable to the number of the applicable Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required to withhold and shall withhold
any monies from any cash dividend or other cash distribution in respect of the
Series K Preferred Stock on account of taxes, the distribution in respect of the
applicable Depositary Shares shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of a
Receipt a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next succeeding distribution to record
holders of such Receipts. Each holder of a Receipt shall provide the Depositary
with its certified tax identification number on a properly completed Form W-8 or
W-9, as may be applicable. Each holder of a Receipt acknowledges that, in the
event of non-compliance with the preceding sentence, the Internal Revenue Code
of 1986, as amended, may require withholding by the Depositary of a portion of
any of the distributions to be made hereunder.
SECTION 4.02 Distributions Other Than Cash. Whenever the Depositary shall
receive any property (including securities) for distribution in a form other
than cash with respect to the Series K Preferred Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of the
applicable Receipts on the record date fixed pursuant to Section 4.04 the pro
rata portion, as nearly as practicable, of such property (including securities)
received by it applicable to the number of the applicable Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Company shall adopt such method as it
deems equitable and practicable for the purpose of effecting such distribution,
including the sale of the property thus received, or any part thereof. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of the applicable Receipts in accordance with the
provisions of Section 4.01 for a distribution received in cash. The Depositary
shall have the right, prior to making any distribution of such securities, to
require the Company to provide an opinion of counsel stating that such
securities have been registered under the Securities Act or do not need to be so
registered.
SECTION 4.03 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names the shares of Series K Preferred Stock are recorded on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the
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Depositary to the record holders of the related Receipts, pro rata in proportion
to the number of the shares of Series K Preferred Stock represented by each such
Receipt, in such manner as the Company may determine, either by the issue to
such record holders of warrants representing such rights, preferences or
privileges; provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Company determines that it is not
lawful or not feasible to make such rights, preferences or privileges available
to holders of the related Receipts by the issue of warrants or otherwise, or
(ii) if instructed by holders of the related Receipts (and to the extent so
instructed by such holders) who do not desire to exercise such rights,
preferences or privileges, then the Company, in its discretion may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, cause the Depositary to sell such rights, preferences or
privileges at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sales shall be
distributed by the Depositary to the record holders of the related Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash. The Depositary shall have the right, prior to making any
distribution of such rights, preferences or privileges, to require the Company
to provide an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not need to be so
registered and provide a separate fee schedule for such services.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of the
applicable Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will promptly notify the Depositary of such requirement and will file promptly a
registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its reasonable best
efforts and take all steps available to it to cause such registration statement
to become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any security unless and until such registration statement shall have
become effective, or unless the offering and sale of such securities to holders
are exempt from registration under the Securities Act and the Company shall have
provided to the Depositary an opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that it will promptly notify the
Depositary of such requirements and that the Company will use its best efforts
to take such action or obtain such authorization, consent or permit sufficiently
in advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
SECTION 4.04 Notice of Dividends, Etc.; Fixing of Record Date for Holders
of Receipts. (i) Whenever any cash dividend or other cash distribution shall
become payable or any distribution of property (including securities) other than
cash shall be made, (ii) if rights, preferences or privileges shall at any time
be offered with respect to the Series K Preferred Stock, (iii) whenever the
Depositary shall receive notice of (a) any meeting at which holders of shares of
the Series K Preferred Stock are entitled to vote or of which holders of shares
of such Series K Preferred Stock are entitled to notice, or (b) any election on
the part of the Company to redeem any shares of the Series K Preferred Stock, or
(iv) whenever the Company shall decide it is
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appropriate, the Depositary shall, in each such instance, fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to the Series K Preferred Stock) for the determination of the holders of
the related Receipts who shall be entitled hereunder to receive a distribution
in respect of such dividend, distribution, rights, preferences or privileges or
the net proceeds of the sale thereof, or to give instructions for the exercise
of voting rights at any such meeting, or who should be entitled to receive
notice of such meeting or for any other appropriate reasons.
SECTION 4.05 Voting Rights. Upon receipt of notice of any meeting at which
the holders of shares of the Series K Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of the related Receipts a notice which shall contain (i) such information as is
contained in such notice of meeting and (ii) a statement that the holders may,
subject to any applicable restrictions, authorize the Depositary to exercise the
voting rights pertaining to the number of shares of the Series K Preferred Stock
represented by their related Depositary Shares (including express authority to
give a discretionary proxy to a person designated by the Company) and a brief
statement as to the manner in which such authorization may be given. Upon the
written request of the holders of Receipts on such record date, the Depositary
shall endeavor, insofar as practicable, to vote or cause to be voted, in
accordance with the instructions set forth in such requests referred to above,
the votes relating to the applicable shares of Series K Preferred Stock (or
portion thereof) represented by the related Depositary Shares evidenced by all
related Receipts as to which such authorization has been received. The Company
hereby agrees to take all such reasonable actions which may be deemed necessary
by the Depositary to enable the Depositary to vote such shares of Series K
Preferred Stock or cause such shares of Series K Preferred Stock to be voted. In
the absence of authorization from the holder of a Receipt, the Depositary will
abstain from voting (but, at its discretion, not from appearing at any meeting
with respect to the Series K Preferred Stock unless directed to the contrary by
the record holders of all the related Receipts) to the extent of the shares of
Series K Preferred Stock (or portion thereof) represented by the applicable
Depositary Shares evidenced by such Receipt.
SECTION 4.06 Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, Etc. Upon any change in liquidation preference or stated
value, split-up, combination or any other reclassification of the Series K
Preferred Stock, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation to which the Company is a party or sale of all or
substantially all of the Company's assets, the Depositary shall upon the
instructions of, the Company, and in such manner as to retain as nearly as
possible the percentage ownership interest in the Series K Preferred Stock of
holders of the related Receipts immediately prior to such event, (i) make such
adjustments in (a) the fraction of an interest in one share of Series K
Preferred Stock represented by one related Depositary Share and (b) the ratio of
the redemption price per the related Depositary Share to the redemption price of
a share of the Series K Preferred Stock, in each case as it may deem necessary
to reflect the effects of such change in liquidation preference or stated value,
split-up, combination or other reclassification of Series K Preferred Stock, or
of such recapitalization, reorganization, merger, amalgamation or consolidation
or sale, and (ii) treat any securities which shall be received by the Depositary
in exchange for or upon conversion of or in respect of the shares of Series K
Preferred Stock as new deposited securities so received in exchange for or upon
conversion of or in respect of the shares of Series K Preferred Stock. In any
such case the Depositary shall, upon receipt of written request of the Company,
execute and deliver additional Receipts, or may call for surrender of all
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outstanding applicable Receipts to be exchanged for new Receipts specifically
describing such new deposited securities.
Anything to the contrary herein or in any Receipt notwithstanding, record
holders of Receipts shall have the right from and after the effective date or
any such change in liquidation preference or stated value, split-up, combination
or other reclassification of the Series K Preferred Stock or any such
recapitalization, reorganization, merger, amalgamation, consolidation or sale,
to the extent that holders of shares of Series K Preferred Stock had the right,
prior to or on the applicable effective date, to convert, exchange or surrender
shares of Series K Preferred Stock into or for other stock, securities, property
or cash, to surrender the related Receipts to the Depositary with instructions
to convert, exchange or surrender the shares of Series K Preferred Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which the shares
of Series K Preferred Stock represented by such Receipts has been converted or
for which such shares of Series K Preferred Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07 Inspection of Reports. The Depositary shall make available
for inspection by record holders of Receipts at the Depositary's Office, and at
such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of shares of Series K Preferred Stock.
SECTION 4.08 List of Receipt Holders. Promptly, upon request by the
Company, the Depositary shall furnish to it a list, as of a specified date, of
the names and addresses of all record holders, and the number of shares of
Series K Preferred Stock represented by the Receipts held by such holders.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain, at the Depositary's Office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Company and the Depositary hereby appoint Mellon Investor Services
LLC, as Registrar under this Deposit Agreement for registration of such Receipts
or Depositary Shares in accordance with the requirements of the NYSE, or any
other applicable stock exchange in which the Receipts or the Depositary Shares
may be listed. Such Registrar (which may be the Depositary if so permitted by
the requirements of such exchange) may be removed and a substitute Registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, the Depositary Shares or the shares of Series K
Preferred Stock are listed on one or more other stock exchanges, the Depositary
will, at the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and
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exchange of such Receipts, such Depositary Shares or such shares of Series K
Preferred Stock as may be required by law or applicable stock exchange
regulation. Mellon Investor Services LLC hereby agrees to act as the registrar,
dividend disbursing agent and redemption agent for the Series K Preferred Stock.
The Registrar shall maintain books at the Depositary's Office (or at such
other place as shall be approved by the Company and of which the holders of
Receipts shall have reasonable notice) for the registration of transfer of
Receipts, which books at all reasonable times shall be open for inspection by
the record holders of the applicable Receipts; provided, that the exercise of
such right shall be governed by the provisions of Article 6, Section 624 of the
New York Business Corporation Law, as amended, or any successor provision
thereto, anything herein to the contrary notwithstanding; provided, further,
that any such holder requesting to exercise such right shall certify to the
Depositary that such inspection shall be for a proper purpose reasonably related
to such person's interest as an owner of Depositary Shares evidenced by the
Receipts.
The Depositary may cause the Registrar to close the books with respect to
any class of Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Series K Preferred
Stock or when such action is deemed necessary or advisable by the Depositary,
any Depositary's Agent or the Company because of any requirement of law or of
any government, governmental body or commission, stock exchange or any
applicable self regulatory body, including, without limitation, the NYSE or the
NASD, or deemed expedient by it in connection with the performance of its duties
hereunder.
SECTION 5.02 Prevention or Delay by the Depositary, the Depositary's
Agents, the Registrar or the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company shall incur any liability
to any holder of any Receipt if by reason of any provision of any present or
future law, or regulation thereunder, of the United States of America or of any
other governmental authority or, in the case of the Depositary, the Depositary's
Agent or the Registrar, by reason of any provision, present or future, of the
Company's Articles of Incorporation, as amended (including the Series K
Amendments), or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability or be subject to any holder of
a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement,
except in case of any such exercise or failure to exercise discretion not caused
as aforesaid, if caused by the gross negligence or willful misconduct (which
gross negligence or willful misconduct must be determined by a final,
non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction) of the party charged with such exercise or failure to exercise.
SECTION 5.03 Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
any Registrar assumes any obligation or shall be subject to any liability under
this Deposit Agreement to holders of Receipts, the Company or any other person
or entity other than for its gross negligence or willful misconduct (which gross
negligence or willful misconduct must be determined by a final, non-appealable
order, judgment, decree or ruling of a court of competent jurisdiction). The
Company
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shall not assume any obligation or be subject to any liability under this
Deposit Agreement to holders of Receipts, other than for its gross negligence or
willful misconduct (which gross negligence or willful misconduct must be
determined by a final, nonappealable order, judgment, decree or ruling of a
court of competent jurisdiction). Notwithstanding anything to the contrary
contained herein, neither the Depositary, nor any Depositary's Agent nor any
Registrar shall be liable for any special, indirect, incidental, consequential,
punitive or exemplary damages, including but not limited to, lost profits, even
if such person or entity alleged to be liable has knowledge of the possibility
of such damages. Any liability of the Depositary and any Registrar under this
Deposit Agreement will be limited to the amount of annual fees paid by the
Company to the Depositary or any Registrar.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Series K Preferred Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in expense
or liability unless indemnity satisfactory to such party against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the advice of legal counsel or accountants, or information from
any person presenting shares of Series K Preferred Stock for deposit or any
holder of a Receipt. The Depositary, any Depositary's Agent, any Registrar and
the Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the party or parties specified in this Deposit
Agreement.
The Depositary will not be deemed to have any knowledge of any item for
which it is entitled to receive notification under any Section of this Deposit
Agreement unless and until it has received such notification.
The Depositary shall not be responsible for any failure to carry out any
authorization to vote any of the shares of Series K Preferred Stock or for the
manner or effect of any such vote made, as long as such action or inaction does
not result from gross negligence or willful misconduct of the Depositary. The
Depositary undertakes and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement. The parties hereto acknowledge that no implied covenants or
obligations shall be read into this Deposit Agreement against the Depositary or
any Registrar. The Depositary will indemnify the Company against any liability
that may arise out of acts performed or omitted by the Depositary or any
Depositary's Agent due to its or their gross negligence or willful misconduct
(which gross negligence or willful misconduct must be determined by a final,
non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction). The Depositary, any Depositary's Agent, any Registrar and the
Company may own and deal in any class of securities of the Company and its
affiliates and in Receipts subject to the provisions of applicable law. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates. In the event the Depositary, the Depositary's
Agent or any Registrar believes any ambiguity or uncertainty exists in any
notice, instruction, direction, request or other communication, paper or
document received by it pursuant to this Deposit Agreement, the Depositary, the
Depositary's Agent or Registrar shall promptly notify the Company of the details
of such alleged ambiguity or uncertainty, and may, in its sole discretion,
refrain from taking any action, and the Depositary, the Depositary's Agent or
Registrar shall be fully protected
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and shall incur no liability to any person from refraining from taking such
action, absent gross negligence or willful misconduct (which gross negligence or
willful misconduct must be determined by a final, non-appealable order,
judgment, decree or ruling of a court of competent jurisdiction), unless and
until (i) the rights of all parties have been fully and finally adjudicated by a
court of appropriate jurisdiction or (ii) the Depositary, the Depositary's Agent
or Registrar receives written instructions with respect to such matter signed by
the Company that eliminates such ambiguity or uncertainty to the satisfaction of
the Depositary, the Depositary's Agent or Registrar.
Whenever in the performance of its duties under this Deposit Agreement,
the Depositary, the Depositary's Agent or Registrar shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking, suffering or omitting to take any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively provided and established by a
certificate signed by anyone of the President, any Vice President, the Treasurer
or the Secretary of the Company and delivered to the Depositary; and such
certificate shall be full and complete authorization and protection to the
Depositary, the Depositary's Agent or Registrar and the Depositary, the
Depositary's Agent or Registrar shall incur no liability for or in respect of
any action taken, suffered or omitted by it under the provisions of this Deposit
Agreement in reliance upon such certificate. The Depositary, the Depositary's
Agent or Registrar shall not be liable for or by reason of any of the statements
of fact or recitals contained in this Deposit Agreement or in the Receipts
(except its countersignature thereof) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been made by the
Company only.
The Depositary, the Depositary's Agent or Registrar will not be under any
duty or responsibility to insure compliance with any applicable federal or state
securities laws in connection with the issuance, transfer or exchange of the
Receipts, Series K Preferred Stock or Depositary Shares.
It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary and any Depositary's Agent are acting only in a
ministerial capacity as Depositary for the deposited Series K Preferred Stock;
provided, however, that the Depositary agrees to comply with all information
reporting and withholding requirements applicable to it under law or this
Deposit Agreement in its capacity as Depositary.
The Depositary and any Registrar hereunder:
(i) shall have no duties or obligations other than those
specifically set forth herein (and no implied duties or obligations), or as may
subsequently be agreed to in writing by the parties;
(ii) shall have no obligation to make payment hereunder unless the
Company shall have provided the necessary federal or other immediately available
funds or securities or property, as the case may be, to pay in full amounts due
and payable with respect thereto;
(iii) shall not be obligated to take any legal or other action
hereunder; if, however, the Depositary determines to take any legal or other
action hereunder, and, where the
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taking of such action might in the Depositary's judgment subject or expose it to
any expense or liability, the Depositary shall not be required to act unless it
shall have been furnished with an indemnity satisfactory to it;
(iv) may rely on and shall be authorized and protected in acting or
failing to act upon any certificate, instrument, opinion, notice, letter,
telegram, telex, facsimile transmission or other document or security delivered
to the Depositary and believed by the Depositary to be genuine and to have been
signed by the proper party or parties, and shall have no responsibility for
determining the accuracy thereof;
(v) may rely on and shall be authorized and protected in acting or
failing to act upon the written, telephonic, electronic and oral instructions,
with respect to any matter relating to the Depositary's actions as depositary
covered by this Deposit Agreement (or supplementing or qualifying any such
actions) of officers of the Company;
(vi) may consult counsel satisfactory to it, and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by the Depositary hereunder in accordance
with the advice of such counsel;
(vii) shall not be called upon at any time to advise any person with
respect to the Depositary Shares or Receipts;
(viii) shall not be liable or responsible for any recital or
statement contained in any documents relating hereto or the Depositary
Shares or Receipts; and
(ix) shall not be liable in any respect on account of the identity,
authority or rights of the parties (other than with respect to the Depositary)
executing or delivering or purporting to execute or deliver this Deposit
Agreement or any documents or papers deposited or called for under this Deposit
Agreement.
SECTION 5.04 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be an entity having its principal office in the United States of
America and having a combined capital and surplus of at least $50,000,000 (or an
affiliate of such entity). If no successor Depositary shall have been so
appointed and have accepted appointment within 60 days after delivery of such
notice, the resigning or removed Depositary may petition any court of competent
jurisdiction for the appointment of a successor Depositary. Every successor
Depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder and agreeing to become
a party to this Deposit Agreement, and thereupon such successor
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Depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the
Company, shall execute and deliver an instrument transferring to such successor
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in all shares of Series K Preferred
Stock deposited with such predecessor and any monies or property held hereunder
to such successor and shall deliver to such successor a list of the record
holders of all outstanding Receipts. Any successor Depositary shall promptly
mail notice of its appointment to the record holders of Receipts.
Any corporation or other entity into or with which the Depositary may be
merged, consolidated or converted, or to which the Depositary may sell all or
substantially all its assets, shall be the successor of such Depositary without
the execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05 Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the address
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required by law, the rules of the NYSE,
or any other national securities exchange, upon which the shares of Series K
Preferred Stock, the Depositary Shares or the Receipts are listed or by the
Company's Articles of Incorporation, as amended (including the Series K
Amendments), to be furnished by the Company to holders of shares of Series K
Preferred Stock. Such transmission will be at the Company's expense and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request.
SECTION 5.06 Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any loss, liability, damage, cost or expense (including
the costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
gross negligence or willful misconduct (which gross negligence or willful
misconduct must be determined by a final, non-appealable order, judgment, decree
or ruling of a court of competent jurisdiction) on the respective parts of any
such person or persons, or (b) by the Company or any of its agents, or (ii) the
offer, sale or registration of the Receipts or shares of Series K Preferred
Stock pursuant to the provisions hereof. The obligations of the Company set
forth in this Section 5.06 shall survive any succession of any Depositary,
Registrar or Depositary's Agent.
SECTION 5.07 Charges and Expenses. The Company shall pay all charges of
the Depositary in connection with the initial deposit of shares of Series K
Preferred Stock and the initial issuance of the Depositary Shares, and any
redemption of shares of Series K Preferred Stock. All other transfer and other
taxes and governmental charges shall be at the expense of holders of Receipts.
The Depositary may refuse to effect any transfer of a Receipt or any withdrawal
of shares of Series K Preferred Stock evidenced thereby until all such taxes and
charges with respect to such Receipt or shares of Series K Preferred Stock are
paid by the holder thereof. If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and
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expenses, provided, however, the Depositary need not incur such charges and
expenses if repayment of such amounts is not reasonably assured to it.
All other charges and expenses of the Depositary and any Depositary's
Agent hereunder and of any Registrar (including, in each case, fees and expenses
of counsel) incurred in the preparation, delivery, amendment, administration and
execution of this Deposit Agreement and incident to the performance of their
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present any statement for charges and
expenses to the Company promptly, unless the Company shall agree otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the record
holders of Receipts representing at least a majority of the Depositary Shares
then outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such Receipt,
to consent and agree to such amendment and to be bound by the Deposit Agreement
as amended thereby.
SECTION 6.02 Termination. This Deposit Agreement may be terminated by the
Company or the Depositary only if (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03, or (ii) there shall have been made
a final distribution in respect of the Series K Preferred Stock in connection
with any liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the record holders of Receipts
pursuant to Section 4.01 or 4.02, as applicable.
Whenever the Deposit Agreement is eligible to be terminated pursuant to
(ii) above, the Depositary will mail notice of such termination to the record
holders of all Receipts then outstanding at least 30 days prior to the date
fixed in that notice for termination of the Deposit Agreement. If any Depositary
Shares remain outstanding after the date of termination, the Depositary
thereafter will discontinue the transfer of such Depositary Shares, will suspend
the distribution of dividends to the owners thereof, and will not give any
further notices (other than notice of such termination) or perform any further
acts under this Deposit Agreement, except that the Depositary will continue (i)
to collect dividends on the outstanding shares of the Series K Preferred Stock
and any other distributions with respect thereto and (ii) to deliver or cause to
be delivered shares of such Series K Preferred Stock, together with such
dividends and distributions, or principal and interest, and the net proceeds of
any sales of rights, preferences, privileges or other property (other than real
property) in exchange for the Depositary Shares surrendered. At any time after
the expiration of three years from the date of termination, the Depositary may
(but shall not be obligated to do so) sell the shares of Series K Preferred
Stock then held by it at a public or private sale, at such place or places and
upon such terms as it deems proper and may thereafter hold the net proceeds of
such sale, without liability for interest, for the pro rata benefit of the
owners of the related Depositary Shares, which have not theretofore been
surrendered.
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Subject to applicable escheat laws, any monies set aside by the Company in
respect of any payment with respect to the shares of Series K Preferred Stock
represented by the Depositary Shares or dividends thereon, and unclaimed at the
end of three years from the date upon which such payment is due and payable
shall revert to the general funds of the Company, after which reversion the
holders of Receipts evidencing such Depositary Shares shall look only to the
general funds of the Company for payment thereof.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary and the Depositary's Agent and any Registrar under
Sections 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02 Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03 Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or modified thereby.
SECTION 7.04 Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram, telecopy or
telex confirmed by letter, addressed to the Company at Washington Mutual, Inc.,
Attention: Corporate Secretary, 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
telephone: prior to October 9, 2006, 0-000-000-0000 and on or after October 9,
2006, 0-000-000-0000, telecopy: prior to October 9, 2006, 0-000-000-0000 and on
or after October 9, 2006, 0-000-000-0000, or at any other address and to the
attention of any other person of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telecopy or telex confirmed
by letter, addressed to the Depositary at the Depositary's Office, at Mellon
Investor Services LLC, Attention: Client Management, 000 Xxxxxxxxxx Xxxx.,
Xxxxxx Xxxx, XX 00000, telephone: 0-000-000-0000, te1ecopy 0-000-000-0000, with
a copy to Mellon Investor Services LLC, Attention: Xxxxx Xxxxxxxxxx, 000
Xxxxxxxxxx Xxxx., Xxxxxx Xxxx, XX 00000, telephone: 0-000-000-0000, telecopy:
0-000-000-0000, or at any other address and any other person of which the
Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered
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or sent by mail or by telegram, telecopy or telex confirmed by letter, addressed
to such record holder at the address of such record holder as it appears on the
books of the Depositary, or if such holder shall have filed with the Depositary
a written request that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram, telecopy or telex shall
be deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telecopy message received by it
from the other or from any holder of a Receipt, notwithstanding that such
telegram or telecopy message shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05 Depositary's Agents. The Depositary may from time to time
appoint any Depositary's Agent to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will promptly notify the Company of any such action.
SECTION 7.06 Holders of Receipts are Parties. By acceptance of delivery of
the Receipts, any holder from time to time of such Receipt shall be deemed to
have agreed to become a party to this Deposit Agreement and to be bound by all
of the terms and conditions hereof and of the Receipts to the same extent as
though such person executed this Deposit Agreement.
SECTION 7.07 Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 7.08 Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.09 Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
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IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Deposit Agreement as of the day and year first above set forth, and all holders
of Receipts shall become parties hereto by and upon acceptance by them of
delivery of Receipts issued in accordance with the terms hereof.
WASHINGTON MUTUAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Authorized Officer
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Deposit Agreement as of the day and year first above set forth, and all holders
of Receipts shall become parties hereto by and upon acceptance by them of
delivery of Receipts issued in accordance with the terms hereof.
Mellon Investor Services LLC
as Depositary
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Authorized Officer
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Deposit Agreement as of the day and year first above set forth, and all holders
of Receipts shall become parties hereto by and upon acceptance by them of
delivery of Receipts issued in accordance with the terms hereof.
Mellon Investor Services LLC
as Registrar
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Authorized Officer
EXHIBIT A
EXHIBIT A
FORM OF RECEIPT
CERTIFICATE FOR
DEPOSITARY SHARES
TRANSFERABLE CUSIP _________________
DEPOSITARY RECEIPT
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH DEPOSITARY SHARE REPRESENTING A ONE FORTY-THOUSANDTH
(1/40,000TH)INTEREST IN ONE SHARE OF SERIES k PERPETUAL NON-CUMULATIVE
FLOATING RATE PREFERRED STOCK
WASHINGTON MUTUAL, INC.
A Washington corporation
MELLON INVESTOR SERVICES LLC, as Depositary (the "Depositary"), hereby
certifies that__________________________________________________________________
________________________________________________________________________________
is the registered owner of DEPOSITARY SHARES ("Depositary Shares"), each
Depositary Share representing a one forty-thousandth (1/40,000th) interest in
one share of Series K Perpetual Non-cumulative Floating Rate Preferred Stock, no
par value and liquidation preference $1,000,000.00, of Washington Mutual, Inc.,
a Washington corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement dated
as of September 18, 2006 (the "Deposit Agreement"), among the Corporation, the
Depositary, the Registrar and the holders from time to time of depositary
Receipts evidencing the Depositary Shares. Capitalized terms not otherwise
defined herein shall have the meanings provided in the Deposit Agreement. By
accepting this depositary Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This depositary Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the depositary Receipts by a duly authorized officer thereof.
Dated:
MELLON INVESTOR SERVICES LLC
Depositary and Registrar
By:_________________________
Authorized Officer
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WASHINGTON MUTUAL, INC.
WASHINGTON MUTUAL, INC. WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF A RECEIPT
WHO SO REQUESTS A COPY OR SUMMARY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY
OF THE PORTIONS OF THE ARTICLES OF INCORPORATION ESTABLISHING THE DESIGNATIONS,
RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS APPLICABLE TO SHARES OF EACH CLASS
AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS DETERMINED FOR EACH
SERIES (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE VARIATIONS FOR
FUTURE SERIES) WHICH THE CORPORATION IS AUTHORIZED TO ISSUE, INCLUDING THE
SERIES K PERPETUAL NON-CUMULATIVE FLOATING RATE PREFERRED STOCK. ANY SUCH
REQUEST SHOULD BE ADDRESSED TO WASHINGTON MUTUAL, INC., 0000 XXXXXX XXXXXX,
XXXXXXX, XXXXXXXXXX 00000, TELEPHONE: PRIOR TO OCTOBER 9, 2006, 0-000-000-0000
AND ON OR AFTER OCTOBER 9, 2006, 0-000-000-0000, TELECOPY: PRIOR TO OCTOBER 9,
2006, 0-000-000-0000 AND ON OR AFTER OCTOBER 9, 2006, 0-000-000-0000, ATTENTION:
CORPORATE SECRETARY.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Depositary Receipt, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT -- __________________ Custodian ________________
(Cust) (Minor)
under Uniform Gifts to Minors Act__________________
(State)
UNIF TRF MIN ACT -- ________________Custodian_________________
(Cust) (Minor)
(until age ____)under Uniform Gifts to Minors Act
_____________
(State)
Additional abbreviations may also be
used though not in the above list
A-2
For value received, _______________________ hereby sell(s), assign(s) and
transfer(s) unto
_________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
Depositary Shares represented by the within Receipt, and do(es) hereby
irrevocably constitute and appoint______________________________________________
Attorney to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution in the premises.
Dated: _____________________________
NOTICE: The signature to the assignment must correspond with the
name as written upon the face of this Receipt in every particular,
without alteration or enlargement or any change whatsoever.
SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations, and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934.
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